DEFENDANT’S MOTION TO INSTRUCT THE JURY ON

THE SPECIFIC MITIGATING FACTORS RAISED BY DEFENSE

Defendant, through counsel, requests this Court to instruct the jury on all mitigating factors statutory and nonstatutory, that the defense presents.

MEMORANDUM IN SUPPORT

A capital defendant has a constitutional right to present both statutory and nonstatutory evidence that might mitigate the death penalty. Lockett v. Ohio, 438 U.S. 586, 608 (1978) (plurality opinion). “[T]he Eighth and Fourteenth Amendments require that the sentencer . . . not be precluded from considering, as a mitigating factor, any aspect of the defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.” Lockett, at 604.(emphasis in original.). In order to ensure that the sentencer “considers” and “gives effect” to the mitigating evidence presented by the defense, the defense requests that the jury be instructed on all the mitigating factors in which evidence was adduced.

By way of example, the Ohio Supreme Court, and the United States Supreme Court have recognized each of the following to be relevant mitigating factors. This is not an exhaustive list; rather, it illustrates the breadth of mitigation factors and demonstrates that the Defendant has a constitutional right to present mitigation uniquely derived from the Defendant’s life history.

1. The defendant’s personality disorder, or emotional disturbance. Eddings v. Oklahoma, 455 U.S. 104 (1982).

2. Residual doubt as to whether the defendant committed the aggravated murder. Lockhart v. McCree, 476 U.S. 162 (1986).

3. Whether the defendant had, at least for some time, been a productive member of society. State v. Johnson, 46 Ohio St. 3d 96, 545 N.E.2d 451, 460 (1989).

4. The defendant’s potential for rehabilitation. Hitchcock v. Dugger, 481 U.S. 393 (1987).

5. The defendant’s ability to make a well-behaved and peaceful adjustment to life in prison. Skipper v. South Carolina, 476 U.S. 1 n.2 (1986).

6. The defendant’s ability to lead a useful life behind bars if sentenced to life imprisonment. Skipper v. South Carolina, 476 U.S. 1 (1986).

7. The defendant’s devotion to, and care of, his family members. State v. Lawrence, 44 Ohio St. 3d 24, 33, 541 N.E.2d 451, 460 (1989).

8. Whether the defendant is a religious person. State v. Poindexter, 36 Ohio St. 3d 1, 8, 520 N.E.2d 568, 574 (1988).

9. The defendant’s feelings of sorrow and remorse for his crime. State v. Brewer, 48 Ohio St. 3d 50, 64, 549 N.E.2d 491, 505 (1990).

10. The defendant was the victim of childhood abuse. Brewer v. Quarterman, 127 S. Ct. 1706 (2007).

11. Lack of specific intent to cause death, relatively minor part in the crime. Lockett v. Ohio, 438 U.S. 586 (1978).

12. The defendant was one of seven children in a poor family that earned its living by picking cotton, his father had died of cancer, the defendant had been a fond and affectionate father. Hitchcock v. Dugger, 481 U.S. 393, 397 (1987).

13. The defendant was deprived parental nurturing, his conduct disorder was caused by family environment (i.e., father absent from home, mother “out of touch”). State v. Powell, 49 Ohio St. 3d 255, 552 N.E.2d 191 (1990).

14. The defendant was under the influence of drugs or alcohol. State v. Hicks, 43 Ohio St. 3d 72, 538 N.E.2d 1030 (1989).

15. The defendant turned himself in, waived extradition, cooperated with police. State v. Hicks, 43 Ohio St. 3d 72, 538 N.E.2d 1030 (1989).

16. Any other factors that call for a penalty less than death, or lessen the appropriateness of a sentence of death.

“Each juror must be allowed to determine and ‘give effect’ to his perception of what evidence favors leniency, regardless of whether those perception command the assent of . . . other jurors.” Walton v. Arizona, 497 U.S. 639, 664 (1990) (Scalia, J. concurring)(overruled in part on other grounds by Ring v. Arizona, 536 U.S. 584 (2002)). The Supreme Court has held that in capital cases, “the sentencer may not refuse to consider or ‘be precluded from considering’ any relevant mitigating evidence.” See Skipper at 4 (quoting Eddings v. Oklahoma (455 U.S. 104, 114 (1982)). When the sentencer is precluded from hearing or does not consider nonstatutory mitigating factors, the proceedings do not comport with the requirements of Skipper, and “the exclusion of mitigating evidence of the sort . . . renders the death sentence invalid.” Hitchcock, 481 U.S. at 398-399.

Therefore, the Defendant requests that the jury be instructed on all statutory and nonstatutory mitigating factors the defense presents.

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing DEFENDANT’S MOTION TO INSTRUCT THE JURY ON THE SPECIFIC MITIGATING FACTORS RAISED BY DEFENSE

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